High Court of Australia Latham C.J. Fullagar and Kitto JJ. Zarnke v Zarnke [1950] HCA 41 ORDER Appeal allowed with costs. Order of Supreme Court, except pars. 1 and 2 thereof, discharged. Order nisi for divorce with costs, which order may be made absolute after 31st December 1950. Cur. adv. vult. The following written judgments were delivered:— Oct. 31 Latham C.J. This is an appeal from a judgment dismissing, by reason of adultery of the plaintiff wife, an action for divorce on the ground of desertion. It was held that the wife had a Queensland domicile. She took proceedings for divorce in South Australia by virtue of the Commonwealth Matrimonial Causes Act, 1945. By reason of s. 11 of that Act, s. 26 of the Matrimonial Causes Acts, 1864 to 1949, of Queensland was applicable. By that section it is provided that the court shall not be bound to pronounce a decree of divorce if it shall find that the petitioner has, during the marriage, been guilty of adultery, or if the petitioner shall in the opinion of the court have been guilty of unreasonable delay. The plaintiff was, when pregnant to her husband, deserted by him in 1927 within four months after the marriage. She was then only seventeen years of age. She has not seen or heard from her husband since 1927. She had no means then or since. She had a child by another man in 1929. She has lived largely by means of public relief and charity. Her two children are adult. Since 1944 she has been living with another man named Daniels as his wife and both he and she have very frankly stated in evidence that they propose to continue their association, but that they wish to get married, the man being now in a position to marry the plaintiff, having been divorced by his wife on the ground of adultery with the plaintiff. His wife has now married his brother. The learned trial judge declined to exercise his discretion under s. 26 of the Matrimonial Causes Acts 1864 to 1949 of Queensland. His Honour treated the fact that the wife proposed, in any event, to continue to live with Daniels, as almost conclusive against her application for matrimonial relief notwithstanding her adultery. His Honour referred to what I said in Henderson v. Henderson [1] , where I regarded the cessation of adulterous intercourse as a most material fact which should incline a court favourably towards an applicant for the exercise of the discretion entrusted to the court. I repeat that the circumstance mentioned should materially assist such an applicant, but I do not regard it as an essential element in all cases. I refer to what Sir Boyd Merriman P. said in Andrews v. Andrews [1] :—"I do not wish to say anything which would discourage petitioners from breaking an adulterous association and coming before the Court with clean hands; and in many cases that may be the right and proper thing to do. It may well be held to be a test whether the discretion should be exercised. But that cannot be a rule of universal application; and as I said in the course of the argument, I doubt the wisdom of advising, as it were, by rule of thumb, that an adulterous association must always be broken off before a petition can be presented. Over and over again I have had cases where discretion has been asked for, where there has been a long association, the birth of children, and where in every respect except the actual legal relationship a new home has been set up and is likely to continue indefinitely. In those circumstances, particularly when the people concerned are poor and there are no real means of setting up alternative accommodation, there may be something unreal in insisting on the association being completely broken off with a view, nevertheless, to its being resumed the moment the decree has been made absolute. In other words, it must depend upon the circumstances of the case whether in the first instance any advice of that sort should be given, and, of course, ultimately, whether the discretion of the Court should be exercised notwithstanding that there has been no nominal change in the situation". In my opinion this statement indicates the proper approach to the exercise of the relevant discretion. 1. (1948) 76 C.L.R. 529. 2. (1940) P. 184, at p. 185. In the present case the maintenance in law of a marriage which completely disappeared in fact when the husband disappeared twenty-three years ago will not further the interests, moral or otherwise, of the parties to the marriage or of the plaintiff's children, nor, from the public point of view, will it tend to preserve or to promote respect for the institution of marriage. It is very probable that it was the husband's desertion of his young wife which brought about her association with another man in order to support herself and her baby. Adultery is always reprehensible, but the law expressly permits a decree of divorce notwithstanding adultery on the part of a plaintiff. A plaintiff will have more difficulty in obtaining a decree when the adultery is present and continuing than when it is past and repented. But all the circumstances of a case should be taken into consideration. In this case the wife was a girl, deserted when pregnant, having no means, charged with the responsibility of her baby when it was born, and she has always been poor. In my opinion it would be acting upon a wrong principle to refuse to exercise the discretion in her favour because she now proposes to continue to live with the man who is desirous of marrying her and supporting her if she obtains a divorce. The delay of the plaintiff in proceeding is explained by her poverty, her ignorance of her rights, and the complexities of the relevant law which continued until the decision in Waghorn v. Waghorn [1] and the enactment of the Commonwealth Matrimonial Causes Act 1945. 1. (1942) 65 C.L.R. 289. The appeal should be allowed and judgment given for divorce. Fullagar J. In this case the learned primary Judge found that the plaintiff wife had proved that she was deserted without cause by her husband in the year 1927, only a few months after her marriage. He considered that the domicile of the husband was in Queensland. The plaintiff, however, having been resident in South Australia for more than one year before commencing proceedings for divorce, was entitled to invoke the jurisdiction given to the Supreme Court of South Australia by the Commonwealth Matrimonial Causes Act 1945. Since the husband was found to be domiciled in Queensland, the law applicable was the law of Queensland. Under that law the wife, by proving the desertion, established a prima-facie right to a decree of dissolution of marriage, but s. 26 of the Queensland Matrimonial Causes Acts provides that the Court shall not be bound to pronounce a decree "if it shall find that the petitioner has during the marriage been guilty of adultery or if the petitioner shall in the opinion of the Court have been guilty of unreasonable delay" in proceeding for a divorce. In this case both of the two "discretionary bars" mentioned in s. 26 existed. The wife admitted that she had during the marriage been guilty of adultery with two men. And, whereas desertion took place in the year 1927, she did not commence proceedings until 7th May 1948. The learned primary Judge obviously considered with anxious care the question whether he should exercise his discretion in favour of pronouncing a decree of dissolution, and he decided that he should refuse the decree. With the greatest respect for his Honour's view, I am of opinion that his exercise of discretion proceeded upon a wrong basis and cannot be supported consistently with the essential principles established by modern authority. The Court is, I think, indebted to Mr. Hicks for his analysis of the case and for his references to authority, but I do not find it necessary to mention any of the cases except Blunt v. Blunt [1] and Henderson v. Henderson [2] . So far as the wife's adultery is concerned, the present case seems to me to be a stronger case than Henderson v. Henderson [2] for the exercise of discretion in favour of granting a decree. In Henderson v. Henderson [2] there appears to have been no circumstance which could incline a court to take a lenient view of the adultery of the petitioning wife. She endeavoured, indeed, to obtain sympathy by allegations of prior adultery on the part of her husband, allegations which the learned trial Judge found to be entirely without foundation. Nothing which could really excuse her conduct was, so far as I can see, ever put forward on her behalf. It may well be that adultery is never really excusable, but in the present case there are circumstances which certainly incline one to "gently scan" the wife's misconduct, and they are circumstances which have often been regarded as "mitigating" when a wife asks that discretion be exercised in her favour. The wife here was aged seventeen years when she was married. Three or four months after her marriage she was deserted. She was then three months pregnant. She was without means, and her parents were in poor circumstances. Some six months after the birth of the child (a daughter) she committed adultery with a man named Anderson, to whom she bore a child (a son) in October 1929. She had nothing to do with Anderson after she became aware that she was pregnant to him. She kept and brought up her two children partly by working and partly with the assistance of Government relief and private aid. Her daughter is now married. In 1944 she met a man named Daniels, and in 1945 commenced an adulterous association with him which has continued up to the present time. Daniels was a married man. He told the plaintiff that his marriage had been "a marriage in name only" for some five years, and that he suspected his wife of improper relations with his brother. Mrs. Daniels obtained a divorce from her husband on the ground of his adultery with the plaintiff, the decree being made absolute on 3rd January 1947. On or about the same day Mrs. Daniels married her husband's brother. Since the divorce, and probably for a short time before it, the plaintiff and Daniels have been living together as husband and wife. The plaintiff's son lives with them. Daniels has been paying alimony to his former wife and has also been supporting the plaintiff. The plaintiff wishes to marry Daniels, and Daniels wishes to marry the plaintiff. 1. (1943) A.C. 517. 2. (1948) 76 C.L.R. 529. 3. (1948) 76 C.L.R. 529. 4. (1948) 76 C.L.R. 529. The position outlined above was frankly disclosed by the plaintiff to the Court. Since both of the plaintiff's children are grown up, and the daughter is married, the interests of children cannot be said to be seriously involved, but all the other elements to which importance was attached in Blunt v. Blunt [1] are present and strongly suggest an exercise of discretion in favour of dissolving the marriage. The plaintiff's married life was a matter of a few months and was broken up without fault on her part when she was little more than a child: there is no possibility of its being resumed. The Daniels' marriage has been dissolved. The interest of Daniels and the interest of the plaintiff lie in their being able to marry and "live respectably". There is no real interest of the community which can be served by compelling them to the choice between an unhappy separation and an adulterous association. I think, indeed, that it is fairly clear that Abbott J. would, if it had not been for one element in the case, have taken the view which was taken in Blunt v. Blunt [1] and Henderson v. Henderson [2] and granted a decree. That element consisted in the fact that Daniels and the plaintiff were living together at the time of the presentation and hearing of the petition, and Daniels, upon being asked by the learned Judge what they proposed to do in the event of a decree being refused, said that he "supposed that" they would continue to live together. With regard to that question and answer, one cannot help observing that, if a similar question had been put in Blunt v. Blunt [1] or Henderson v. Henderson [2] , it is difficult to believe that it could have been honestly answered otherwise than as Daniels answered it. 1. (1943) A.C. 517. 2. (1943) A.C. 517. 3. (1948) 76 C.L.R. 529. 4. (1943) A.C. 517. 5. (1948) 76 C.L.R. 529. With regard to the fact that Daniels and the plaintiff were living together at the time of the hearing, that must be conceded to be a material consideration. Latham C.J., in Henderson v. Henderson [3] , said:—"It is, in my opinion, a most material fact that, though the wife and D. are in love and wish to marry each other, no adultery has taken place between them since August 1945". The petition in that case was presented in September 1946. The passage quoted was specifically referred to by Abbott J. But what may in one case be practically a decisive factor may in another case carry comparatively little weight. In Henderson v. Henderson [2] there were no mitigating circumstances whatever: Dixon J. spoke of the "competing demerits" of the parties to the suit. Here no adultery was committed until the marriage had ceased to be a practical reality. The husband had simply vanished and the police were never able to find him. The first was committed when she was a young girl left destitute, and the second sixteen years later, after she had brought up her two children doubtless under great difficulties. The very fact that she and Daniels wish to marry and have incurred the expense of these proceedings suggests that they have respect for the institution of matrimony, and I cannot think, any more than could Dixon J. in Henderson v. Henderson [1] , that "any decision the court gives between these parties will produce any effect by way of warning or example upon any stranger to the suit". 1. (1948) 76 C.L.R. 529, at p. 538. 2. (1948) 76 C.L.R. 529. 3. (1948) 76 C.L.R., at p. 545. So far as delay is concerned, I do not think that that factor can with propriety be regarded as fatal in this case. For many years after she was deserted the plaintiff was in very poor circumstances with two young children. She lived in South Australia, but it would seem that she would have had to sue for a divorce in Queensland, and she would have been faced in any case with a probably fatal difficulty until this Court in 1942 decided Waghorn v. Waghorn [2] . Such technical difficulties do not perhaps go to the root of the matter, but the other circumstances, coupled with the fact that Daniels could not marry her until his wife's decree was made absolute in January 1947, seem to me to justify regarding the delay up to that time as fairly excusable. She commenced proceedings in May 1948. The only delay to which any real importance can be attached seems to me to lie in the period of sixteen months between January 1947 and May 1948. The lapse of such a period (except possibly in some cases of a husband proceeding on the ground of his wife's adultery) is, I think, generally and rightly regarded, in such cases as the present, as not justifying an exercise of discretion against the petitioner. 1. (1942) 65 C.L.R. 289. In my opinion, this appeal should be allowed with costs. There should be a decree nisi for dissolution of marriage in accordance with the law of Queensland on the ground of desertion, and the defendant should be ordered to pay the plaintiff's costs of the action. Kitto J. Section 26 of the Queensland Matrimonial Causes Acts 1864 to 1949, so far as it applies to this case, provides that: "In case the court shall be satisfied on the evidence that the case of the petitioner has been proved then the court shall pronounce a decree declaring such marriage to be dissolved. Provided always that the court shall not be bound to pronounce such decree if it shall find that the petitioner has during the marriage been guilty of adultery or if the petitioner shall in the opinion of the court have been guilty of unreasonable delay in presenting or prosecuting such petition ". The section does not give a petitioner, whose case is proved, but whose adultery or unreasonable delay is also found, a prima-facie right to a divorce. The effect of the proviso is that the granting of a divorce in such a case is not ex debito justitiae; the court which hears the case has an unfettered discretion to grant or refuse the divorce. The discretion is committed primarily to the judge who hears the case, but its exercise is subject to appeal and may be reversed either because of error in law or because the appellate court for other reasons can see clearly that injustice has been done. Thus if attention has been paid to irrelevant or unproved matters, or if no weight or insufficient weight has been given to relevant considerations, it is the duty of a court of appeal which is clearly satisfied that injustice has resulted to set the injustice right: Charles Osenton & Co. v. Johnston [1] ; Blunt v. Blunt [2] ; Storie v. Storie [3] . The decisions of the House of Lords in Blunt v. Blunt [2] , and of this Court in Henderson v. Henderson [4] , have emphasized that the discretion, within the limits which its judicial character implies, is unfettered by any rules, but that certain matters, enumerated in the latter case by Latham C.J. [5] , are relevant to be considered and therefore must be accorded proper weight. 1. (1942) A.C. 130. 2. (1943) A.C. 517. 3. (1945) 80 C.L.R. 597. 4. (1943) A.C. 517. 5. (1948) 76 C.L.R. 529. 6. (1948) 76 C.L.R., at p. 536. The appellant proved her case before the learned trial judge; but she admitted adultery during the marriage, and a long delay had occurred between the date when she became entitled to a divorce by reason of her husband's desertion and the commencement of proceedings. The learned Judge on both these grounds thought it right to refuse a divorce. With all respect to his Honour, it seems to me that, in exercising his discretion against the appellant by reason of her adultery, he fell into error in two respects. First, "I am convinced", he said, "that it would come as a surprise to the majority of the public to find that a litigant, however greatly injured, could, while living in open adultery, successfully invoke the exercise of the judicial discretion in her favour". To act upon this view was to hold himself bound by a rule which neither statute nor case law prescribes. The fact that a petitioner is living in adultery is of course a very material circumstance; to overlook it or to fail to regard it seriously would be plainly wrong; but to regard it as conclusive, whatever the circumstances of the case, is also wrong. The discretion is not so fettered. The learned Judge seems to have allowed himself to be influenced by the fact that in Henderson v. Henderson [1] much weight was given to the cessation, before the proceedings commenced, of the adulterous association there being considered. In particular he quoted some of the words which Latham C.J. [2] used in reference to the cessation of the wife's adultery. The words he quoted were "a most material fact which should incline a court favourably towards her". The use of this quotation illustrates the danger of treating words used in relation to the facts of one case as affording a guide to the consideration of the facts of another case. The passage from which the words quoted were taken did not purport to state any general rule or principle. Indeed, if the passage is read as a whole, it is quite clear that the cessation of the adultery before the proceedings commenced was regarded as important, not as an isolated fact, but in its relation to all the circumstances of the case. In particular, the passage shows that the adultery in question had occurred and been discontinued before the husband and wife separated. In any case, it by no means follows from the fact that the termination of an illicit relationship before the commencement of divorce proceedings should incline a court to a favourable exercise of discretion in one case, that its continuance should be treated as decisive against a petitioner in another case. 1. (1948) 76 C.L.R. 529. 2. (1948) 76 C.L.R., at p. 538. Then his Honour said: "Flagrant disregard of the matrimonial law and of the conventions of morality should not be regarded as an inducement to dissolve a marriage, however hopelessly and utterly it has broken down". What his Honour had to consider, however, was whether the appellant's conduct, however severely it might deserve to be criticised, should be held to preclude her from obtaining a divorce, in view of all the circumstances, including her desire and that of the man with whom she was living to pay due regard to the matrimonial law and the conventions of morality by marrying one another; and the fact, for it was a fact beyond any doubt, that the appellant's marriage had hopelessly and utterly broken down more than twenty years before was a matter not to be put aside, but to be regarded as weighing heavily in the scales. Apart from the position and interest of the children of the marriage (which may be left out of account in view of their ages), every one of the matters which the House of Lords enumerated in Blunt v. Blunt [1] , as relevant to the exercise of discretion was involved in this case: the interest of the party with whom the appellant committed misconduct, with special regard to the prospect of their future marriage; the question whether there was a prospect of reconciliation between husband and wife; the interest of the appellant, and in particular the interest that she should be able to remarry and live respectably; and the interest of the community, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down. I cannot escape the conclusion that his Honour, although he recognized that these considerations were relevant, omitted to give them the weight to which they were entitled. 1. (1943) A.C. 517. I need not recite the history of the appellant's matrimonial and extra-matrimonial life; it is sufficiently stated in the preceding judgments. In my opinion, it is impossible in this case to give due attention to all relevant considerations and yet to conclude that it is better to maintain the appellant's marriage to the man who deserted her twenty-three years ago than to set her free to commence a respectable married life. In particular, it seems to me quite clear that the interests of public morality and respect for the institution of marriage will be better served in the circumstances of this case by enabling marriage to replace illicit cohabitation than by allowing disapproval of the appellant's undoubtedly blameworthy conduct to find expression in the refusal of her release from a marriage which many years ago broke down beyond hope of restoration. On the question of delay, the learned Judge expressed himself as not satisfied that want of means was the real cause of the delay. He thought that the true explanation was that the appellant really had no actual desire to obtain a divorce until she had been living for some time with Daniels, nor until his wife had divorced him. But his Honour does not seem to have put to himself the question whether the delay was for any reason culpable. As this Court pointed out in Turnbull v. Turnbull [2] , it has long been held that delay, to operate as a bar to divorce, must be culpable; it is culpable if it is of such a kind as to suggest an acquiescence in the respondent's wrongful conduct, a condonation of it, an insensibility to the loss of the spouse, or an insincerity in the petitioner's complaint, or if it is something in the nature of connivance or indicates complete indifference. See Pellew v. Pellew [1] ; Tollemache v. Tollemache [2] . The length of the delay is obviously important, but only in its bearing upon the question of the culpability of the delay. 1. (1945) 47 W.A.L.R. 31; 19 A.L.J. 245. 2. (1859) 1 S. & T. 553, at p. 555 [ 164 E.R. 856, at p. 857]. 3. (1859) 1 S. & T. 557 at p. 561 [ 164 E.R. 858, at p., 859]. I do not myself attach importance to the fact that, during part of the period which elapsed between the accrual of the appellant's right to sue for divorce and the institution of these proceedings, persons acquainted with the state of the authorities would or might have considered that the appellant was faced with a difficulty which was not removed until this Court decided Waghorn v. Waghorn [3] . The appellant does not appear to have been affected by any misunderstanding or perplexity as to the state of the law. But her straitened circumstances and humble station in life, of which his Honour was satisfied in point of fact, appear to me not to have been accorded their due significance. His Honour referred to the availability of free legal assistance, but there was no evidence to suggest that the appellant was aware of it. Even if it be true that she had no actual desire to obtain a divorce until the opportunity to marry Daniels presented itself, I can see no ground in the evidence for concluding that her delay was culpable in any relevant sense. In the circumstances of this case I am clearly of the opinion that it would be wrong to refuse a divorce by reason of the delay that has occurred. 1. (1942) 65 C.L.R. 289. I agree that the appeal should be allowed and that there should be judgment for divorce.